Historians fear Boston tapes controversy will damage research into the Troubles

Historians fear Boston tapes controversy will damage research into the TroublesCollege’s decision to return interviews ‘not a good precedent for researchers’
Joe Humphreys
Irish Times
Sat, May 10, 2014

A temporary stability returned to Northern politics this week as Gerry Adams was released without charge by the PSNI, but there is a fresh degree of turmoil in the world of academia.

The Boston tapes controversy has highlighted not only the legal grey area surrounding confidentiality in research, but an inconsistency in academic protocols and practice. There is no agreed set of guidelines governing oral history projects, and academics point out those in existence are sometimes so onerous they stifle research.

Ethical issues

“If there is an upside to this it will make people think a little harder about the ethical issues involved,” says Dr Ida Milne, co-director of Oral History Network Ireland.

“On the downside, people are going to be a lot more cautious and our history may be a bit less rich because of it.”

Recriminations continue among those behind the Boston College Belfast Project, which has been described by Canadian researchers Ted Palys and John Lowman as “an example that will be cited for years to come of how not to protect research participants”.

The authors of the project Ed Moloney and Anthony McIntyre claim the college did not fight hard enough to prevent their interviews being released to the PSNI, while the college has criticised the way the pair allowed the key allegations of the late Brendan Hughes against Adams to emerge into the public domain in a book and TV documentary – something that then forced the hand of the police.

Boston College this week took the unprecedented step of offering to return interview materials to participants. Its spokesman Jack Dunn said the project may have been “well-intentioned”, but Moloney and McIntyre should have known that confidentiality could not be guaranteed.

Palys, an international expert in research ethics, told The Irish Times this decision was “only appropriate” in the circumstances.

Completely confidential

“The interviews were done with an understanding that they were completely confidential and no one would ever see them until after their deaths, and that is not the case.

“Those who were interviewed should have control over their information and be allowed to withdraw their data,” said the Canadian, who is professor of criminology at Simon Fraser University.

University of Limerick historian Dr Ruan O’Donnell takes a different view, saying the college decision to return the tapes was “unfortunate, in that it may result in the insights contained being lost forever. This is not a good precedent for long-term researchers.”

Like many others in the field, he believes historians should be granted some right to confidentiality over their sources, describing the Boston College episode as “a body blow to academic freedom”. But he says much of the present difficulty also “stems from the deliberate failure to introduce a statute of limitations for political offences, contrary to standard international legal practice”.

“One of the major structural flaws of the peace process was the failure to address this wider situation by means of a de facto amnesty in the form of a declared, possibly ‘special’, statute of limitations.”

In the absence of such clarity, historians of the Troubles operate in a legal limbo “with no protection whatsoever”.

O’Donnell who is carrying out a major interview project with republicans jailed in Britain since the 1950s, has adopted his own protections, including storing tapes in a secure location, and using “cryptic” notes.

A common practice among researchers is to get interviewees to sign a consent form, which stipulates how the material will be treated.

Milne says best practice would include a cooling-off period between the interview and signing, as “interviewees, especially elderly people, can become quite tired” and it is unfair to present them with a detailed contract at the end of an interview. Conditions can be included preventing release of an interview until the subject’s death, if not years afterwards.

Transcript

Ideally, subjects are also given a transcript or copy of the interview, but this can create its own problems. “It’s difficult sometimes because the first thing people say is often the most interesting thing, and then when they start to think about the different ways it could be used, or talk to the family about what they said, they can take it back.”

TCD professor of contemporary Irish history Eunan O’Halpin shares this concern, saying there is a risk that historical research could be “disfigured by compliance” with protocols originating in the social sciences.

Selective thinking

As for the rights and wrongs of the Belfast project, O’Halpin says: “There is a lot of selective thinking about this. Researchers are citizens, and cannot claim special professional privileges like lawyers or doctors. It’s absurd to argue the crisis of the Boston College tapes is the fault of the PSNI . . .

“What would be said if a researcher refused to hand over interview evidence in a case of domestic murder, or of child abuse or other heinous crime, on grounds simply of having offered confidentiality to her source?”

The “donor agreement” signed by participants in the Belfast project states that “access to the tapes and transcripts shall be restricted until after my death”, when the power of release would be transferred to Boston College library.

Participants can rightly feel aggrieved that they were not informed this guarantee would be subject to the limitations of US criminal law.

The college also had the option of following an “ethics first” rather than a “law first” position when subpoenaed, Palys points out.

While he wouldn’t dictate to any institution, he notes: “There are two researchers that I know of, both in the United States, who have gone to jail – for eight days in one instance and 159 days in another – after being cited for contempt of court.”

What all sides accept is that there was a degree of naivety to the project. “Given the investment by the Irish, British and American governments in the peace process,” said Dunn, “no one thought the PSNI would take the step they took, or would be allowed to take the step they took.”

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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